Controversy haunts federal prosecutor in Jacksonville

Jim Schoettler

Friday

Jul 26, 2013 at 5:28 PM

A federal judge and a prosecutor who tangled over a botched case involving three men charged with smuggling honey into Jacksonville had a subsequent dust-up where the judge questioned the prosecutor's professionalism.

U.S. District Judge Marcia Howard issued an order earlier this month criticizing Assistant U.S. Attorney Russell Stoddard for failing to disclose changes made throughout a new indictment in a May gun case on the eve of trial.

"Counsel's lack of candor to the court and to his opposing counsel falls below the standard of professionalism demonstrated by members of the bar of this court," Howard wrote. "It is the court's expectation that such actions will not be repeated."

Stoddard has since been removed from the case and the matter reported to the U.S. Department of Justice's Office of Professional Responsibility, said Will Daniels, a spokesman for the U.S. Attorney's Office. He gave no other details.

Stoddard's office in Jacksonville referred calls to Daniels.

The rare public rebuke by a federal judge for a prosecutor followed a courtroom exchange in May in which Stoddard refused Howard's suggestion he apologize to three men jailed for up to 18 months and then freed in a Chinese honey smuggling case. Howard excluded the key prosecution expert, a chemist, from testifying based on what turned out to be lab tests with no scientific basis. Howard apologized to the men after the charges were dismissed.

The changes in the gun case involved accusations against Jude Fontus, one of three people indicted in July 2012 on charges of conspiring to illegally export firearms bought in Jacksonville into Haiti. The co-defendants pleaded guilty and agreed to testify against Fontus.

A new indictment, known as a superseding indictment, was "surprisingly" delivered to Howard's chambers May 16 the week before the trial was to begin, said her July 2 order, which was obtained by the Times-Union this week. The courtroom deputy was told the new indictment involved only minor date changes and that the defense agreed it wouldn't affect the trial.

But Howard sought to have Fontus rearraigned May 17 before U.S. Magistrate Tom Morris. Morris compared the indictments, spotted the "many" changes and notified public defender Sylvia Irvin before holding a hearing, the order said.

Irvin told Howard in a hastily called status review that afternoon that Stoddard convinced her the superseding indictment included only minor date changes and she didn't review it further until contacted by Morris. During the status review, Stoddard "unabashedly" revealed that he added two new overt acts alleging travel by Fontus to and from Haiti, the order said. Howard noted in the order that Stoddard did not reveal other changes and deletions that she discovered.

When asked by Howard whether he had an ethical obligation to advise Irvin of the travel-related additions, Stoddard said he didn't think it materially changed the case. But Irvin said the changes affected how Fontus was portrayed.

The rearraignment was held May 20 and Irvin requested more time to prepare. Howard continued the trial without objection from Stoddard.

Howard's order said Stoddard's actions not only jeopardized the trial date, but could have led to "46 citizens arriving at the courthouse for jury selection only to be sent home." The jury pool had already been selected.

"Of equal concern is Mr. Stoddard's repeated representation to the court during the status conference that only the dates and two overt acts changed," Howard wrote. "In truth, changes were made throughout the superseding indictment not only in the description of the manner and means, but in a substantial majority of the overt acts."

In a footnote to her order, Howard said that the court has previously been forced to address Stoddard's failure to give other counsel and the court "full, accurate information" in a 2009 restitution hearing. No other details were given.

Howard declined to comment for this story. Irvin could not be reached to comment.

Jim Schoettler: (904) 359-4385

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